IMPORTANT POINT
An employee's unauthorized absence from duty, despite a challenged transfer order, does not entitle them to pay and allowances.

JUDGMENT :

A.S. Chandurkar, J.

1. Rule. Rule made returnable forthwith and heard learned counsel for the parties. The challenge raised in this writ petition is to the judgment dated 02/05/2022 passed by the learned Member, Maharashtra Administrative Tribunal, Mumbai thereby allowing the Original Application preferred by the respondent and setting aside the order dated 22/04/2021 by which the absence of the respondent from duty for a period of 271 days from 02/06/2019 to 27/02/2020 was treated as absence without leave.

2. Facts relevant for considering the challenge as raised are that the respondent came to be appointed as Police Head Constable on 04/07/1998. On 30/05/2019, he was transferred from Mumbai to Dhule. The respondent challenged the said order of transfer by filing Original Application No.524 of 2019. The respondent however was relieved on 01/06/2019 for joining at the place of transfer. He sought interim relief in the proceedings filed before the Tribunal but on 12/06/2019 interim relief was refused. The petitioner however did not join the place of transfer. Ultimately on 20/01/2020, the Tribunal allowed Original Application No.524 of 2019 and set aside the order of transfer dated 30/05/2019. Thereafter, the petitioner was permitted to join on his original post on 28/02/2020. The petitioner made an application on 04/03/2020 seeking pay and allowances for the period from the date of the order of transfer till he re-joined duty. The Deputy Commissioner of Police on 22/04/2021 refused to grant any pay and allowances for the period of absence from 02/06/2019 to 27/02/2020. By referring to the provisions of Rule 29 of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981, the respondent’s absence was treated as without pay. Being aggrieved, the respondent preferred Original Application No.439 of 2021 before the Tribunal. The learned Member was of the view that since the order of transfer was set aside on 20/01/2020 by the Tribunal, it was non-est. It ought to be treated as an order that never came in existence. It was held that refusal to grant any interim relief in the earlier Original Application would not deprive the respondent from receiving his pay and allowances. The order dated 22/04/2021 denying relief to the respondent was quashed and it was directed that he be paid pay and allowances for the period from 02/06/2019 to 27/02/2020. Being aggrieved, the Deputy Commissioner of Police, Wireless Division Mumbai has filed this writ petition.

3. Mrs. Reena Salunkhe, the learned Assistant Government Pleader for the petitioner submitted that the Tribunal erred in holding that the order of transfer dated 30/05/2019 was non est as it was set aside by the Tribunal in the earlier proceedings initiated by the respondent. Referring to the order passed in the earlier Original Application, it was submitted that since the Police Establishment Board as required to be constituted under Section 22J-3 of the Maharashtra Police Act, 1951(for short, ‘the Act of 1951’) had not been properly constituted, the order of transfer dated 30/05/2019 had been set aside. The respondent had challenged the said order before the Tribunal and after hearing him, interim relief was refused by the Tribunal. This interim order was not challenged by the respondent and it operated till the said Original Application was ultimately decided on 20/01/2020. Under the service Rules, it was incumbent upon the respondent to have joined at the place of transfer as interim relief was refused in the proceedings filed by him. The respondent however did not join at the place of posting for a period of 271 days. It was only after the Tribunal allowed the Original Application and set aside the order of transfer dated 30/05/2019 that he re-joined at his original post. Such conduct was unbecoming of a Government servant and hence, he could not be permitted to take advantage of such conduct. Reliance was placed on the decisions in S.C. Saxena Vs. Union of I